This chapter examines the barriers posed for smaller and poorer World Trade Organization (WTO) members to challenge trade barriers under the WTO's dispute settlement understanding. It first addresses the implications of the judicialization of the WTO's dispute settlement system. It next examines reasons why participation in the WTO's dispute settlement system matters. It then summarizes the results of studies of the system's use and, in light of these findings, posits explanations for smaller developing countries' lack of engagement.

Decisions by arbitral tribunals in investment treaty cases do not have formal precedential status. Yet certain issues recur, and prior decisions at the least provide guidance to later tribunals. The content of the most frequently invoked substantive treaty provisions - the obligations to accord national treatment and fair and equitable treatment to foreign investors, and to expropriate the property of foreign investors only in accordance with international law and on payment of due compensation - is far from clear. Furthermore, procedural matters, such as decisions regarding the place of arbitration or the allocation of costs, play an increasingly important role in investment arbitrations but are also not addressed thoroughly in the treaties themselves. Given those limitations, it seems inevitable that arbitral decisions, as they accumulate, will help to flesh out the extent of state parties' obligations and investors' legitimate expectations when their relationship is governed by an investment treaty. Thus, the decisions of investment treaty arbitral tribunals are proving to be essential in establishing the modern international law of investment. The actual compilation of a generally accepted set of standards will be an accretive process developed little by little as tribunals make decisions in individual cases, and as those decisions are tested by other tribunals, by publicists and international organizations, and by the states themselves. Gradually one may expect the institution of a jurisprudence constante, and the emergence of key decisions that are judged to be the influential starting points from which further analysis should flow.

On Thursday, December 18, the ICTR Trial Chamber rendered its judgment in the case (No. ICTR-01-73) against Protais Zigiranyirazo, brother-in-law of President Habyarimana. Zigiranyirazo was charged (amended indictment here) with conspiracy to commit genocide, genocide, complicity in genocide, and crimes against humanity (extermination and murder).

In its judgment (judgment here; press release here), the Trial Chamber convicted Zigiranyirazo of genocide and extermination as a crime against humanity. He was acquitted of conspiracy to commit genocide, complicity in genocide, and murder as a crime against humanity. Zigiranyirazo was sentenced to twenty years imprisonment.

Wednesday, December 24, 2008

Yesterday, Germany instituted proceedings against Italy before the International Court of Justice. (Press release here.) In its application, Germany claimed that Italian judicial authorities had "repeatedly disregarded the jurisdictional immunities of Germany as a sovereign State" in cases brought against Germany that sought compensation for acts that occurred during Germany's occupation of Italy toward the end of World War II. (The case also pertains to an attempt to enforce in Italian courts a Greek judgment against Germany that awarded compensation for a massacre by German forces during the War.) In addition to seeking a declaration that the acts of the Italian courts were unlawful, Germany asked the Court to declare that Italy must "by means of its own choosing" ensure that the relevant decisions of its courts "become unenforceable" and that in the future Italian courts do not entertain similar actions.

A few interesting things here: First, Germany and Italy appear to have submitted the dispute amicably. Second, Germany made clear in its application that the dispute does not pertain to EC law. If it did, then recent decisions of the European Court of Justice, interpreting Article 227 EC, would have precluded Germany from bringing this case. Third, Germany carefully characterized its remedial request so that it would not suggest that the ICJ had the authority to overturn the Italian judicial decisions directly. That would have stretched the remedial powers of the Court beyond those that the Court and its litigants have recognized. Instead, Germany adopted the same language - "by means of its own choosing" - that the Court used in LaGrand and Avena when it confronted domestic judicial decisions (in those cases) that it found were not in accord with the United States's international obligations. In other words, Germany recognized that the Court should indicate only the necessary remedial outcome not how that outcome must be achieved.

The Digest of United States Practice in International Law presents an annual compilation of documents and commentary highlighting significant developments in public and private international law, and is an invaluable resource for practitioners and scholars in the field.

Each annual volume compiles excerpts from documents such as treaties, diplomatic notes and correspondence, legal opinion letters, judicial decisions, executive orders, Senate committee reports, press releases and federal legislation and regulations. All the documents which are excerpted in the Digest are selected by members of the Legal Adviser's Office of the U.S. Department of State, based on their judgments about the significance of the issues, their potential relevance to future situations, and their likely interest to practitioners and scholars. In almost every case, the commentary to each excerpt is accompanied by a citation to the full text.

Sunday, December 21, 2008

On Friday, a two-judge panel of the High Court of Justice decided R (Saadoon & Mufdhi) v. Secretary of State for Defence. (Judgment here; Guardian story here.) The question was the lawfulness of the proposed transfer of two Iraqi nationals, who are accused of the murder of two British soldiers, from British custody in Iraq to Iraqi custody for trial by the Iraqi High Tribunal. The claimants argued (para. 2) that "(i) they are within the jurisdiction of the United Kingdom for the purposes of article 1 of the European Convention on Human Rights ("the Convention") and the Human Rights Act 1998 ("the HRA 1998"), so that they enjoy the full range of Convention rights; (ii) transfer to the IHT would violate their Convention rights, and therefore be in breach of s.6 of the HRA 1998, because there are substantial grounds for believing that they would be at real risk of a flagrantly unfair trial, of the death penalty, and of torture or inhuman or degrading treatment while in custody pending trial and while serving any custodial sentence, contrary to articles 2, 3 and 6 of the Convention and article 1 of protocol no. 13; (iii) the transfer would be in breach of rules of customary international law, in particular the prohibition on torture; and (iv) the transfer would also be in breach of a legitimate expectation created by what is said to be the settled policy of Her Majesty’s Government not to expose individuals to a real risk of the death penalty." The court concluded (para. 95): "(1) the claimants are within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention and therefore of the HRA 1998; (2) in accordance with the approach in R (B) v Secretary of State for Foreign and Commonwealth Affairs, the Convention is qualified in its application by the United Kingdom’s obligation under public international law to comply with the request of the Iraqi court to transfer the claimants into the custody of the court; (3) if, however, the claimants would be exposed to such ill-treatment on transfer as to provide a justification in international law for declining to transfer them, the United Kingdom cannot then rely on its international law obligation as qualifying the application of the Convention, and the claimants can invoke the Convention and in particular the Soering principle in the normal way to resist their transfer." With regard to the third point, the court went on to find that a transfer would not violated any British obligations under international law, and so the proposed transfer would be lawful. Having reached this conclusion, though, the court noted that the outcome would have been different if the European Convention had applied (given the risk of the death penalty being imposed and carried out), and in this regard, the court indicated (para. 204) that it would look favorably at a request for permission to appeal (presumably so that the Court of Appeal would have the opportunity to reconsider R (B) v. Secretary of State for Foreign and Commonwealth Affairs in the context of this case).

Can a soldier be held responsible for fighting in a war that is illegal or unjust? This is the question at the heart of a new debate that has the potential to profoundly change our understanding of the moral and legal status of warriors, wars, and indeed of moral agency itself. The debate pits a widely shared and legally entrenched assumption about war--that combatants have equal rights and equal responsibilities irrespective of whether they are fighting in a war that just or unjust--against a set of striking new arguments. These arguments challenge the idea that there is a separation between the rules governing the justice of going to war (the jus ad bellum) and the rules governing what combatants can do in war (the jus in bello). If ad bellum and in bello rules are connected in the way these new arguments suggest, then many aspects of just war theory and laws of war will have to be rethought and perhaps reformed.

This book contains eleven original and closely argued essays by leading figures in the ethics and laws of war and provides an authoritative treatment of this important new debate. The essays both challenge and defend many deeply held assumptions: about the liability of soldiers for crimes of aggression, about the nature and justifiability of terrorism, about the relationship between law and morality, the relationship between soldiers and states, and the relationship between the ethics of war and the ethics of ordinary life.

Contents include:

David Rodin & Henry Shue, Introduction

Jeff McMahan, The Morality of War and the Law of War

David Roden, The Moral Inequality of Soldiers: Why Jus in Bello Asymmetry is Half Right